City of Greater Sudbury v. Municipal Property Assessment Corporation Region 30, 2022 CanLII 25781

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

March 30, 2022

FILE NO.:

WR 176193

Assessed Person(s):

Vale Canada Limited, Xstrata Canada Corporation, Glencore Canada Corporation

Appellant(s):

City of Greater Sudbury

Respondent(s):

Municipal Property Assessment Corporation Region 30

Respondent(s):

Vale Canada Limited, Xstrata Canada Corporation, Glencore Canada Corporation

Property Location(s):

See Schedule A

Municipality(ies):

City of Greater Sudbury

Roll Number(s):

See Schedule A

Appeal Number(s):

See Schedule A

Taxation Year(s):

See Schedule A

Hearing Event No.:

759269

Legislative Authority:

Sections 33, 34 and 40 of the Assessment Act, R.S.O. 1990, c. A.31

APPEARANCES:

Parties

Counsel

Glencore Canada Corporation (formerly Xstrata Canada Corporation)

Kathleen Poole and Karina Wong

Vale Canada Limited

Philip Sanford and Belinda Schubert

Municipal Property Assessment Corporation

Sarah Corman and Hilary Brown

City of Greater Sudbury

Richard Minster and Dan Rosman

HEARD:

November 15 to 19, and 22 to 25, 2021 and January 21, 2022 by video conference

ADJUDICATOR(S):

Carly Stringer, Member, Dan Weagant, Member

DECISION

OVERVIEW

1The City of Greater Sudbury (the “City”) has appealed the current value assessments of 18 Rink Street, 1045 Regional Rd 24, 487 Power Street, 1700 Elm Street, 6 Edison Road, and the Garson Mine (the “Subject Properties”) for the 2017 to 2021 taxation years.

2The respondents are the Municipal Property Assessment Corporation (“MPAC”), Vale Canada Limited (“Vale”) and Glencore Canada Corporation (“Glencore”) (together, the “Respondents”). Glencore, formerly Xstrata Canada Corporation, is the assessed owner of 6 Edison Road. The remaining five properties are owned by Vale.

3The City’s general position is that MPAC’s current value assessments are too low, and the City asks the Board for a significant increase. Both Glencore and Vale agree with MPAC’s valuations; accordingly, Glencore, Vale, and MPAC ask the Board to accept the current values provided by MPAC’s experts.

Description of the Subject Properties

4The Subject Properties are active mining properties within the City’s boundaries. Garson Mine is a mine site. 18 Rink Street and 6 Edison Road are smelter sites. 487 Power Street and 1700 Elm Street are processing facilities. 1045 Regional Road 24 is a mining, processing, and storage facility.

5The Subject Properties range in site area from approximately 30 to 1,000 acres. The Subject Properties contain multiple buildings of various sizes, constructed as far back as the 1930s. Construction on the Subject Properties ranges from light canvas coveralls to special heavy-duty framing, from small pump houses to processing buildings, from office buildings to warehouses, from garages to a “big smoke” superstack. Some structures on the Subject Properties are no longer used or have changed uses over the years. The Subject Properties are all zoned M4 Industrial Mining.

Issues for the Hearing

6The issues on these appeals are the same across all Subject Properties.

7The first issue the Board must consider is: what is the correct current value for each Subject Property for the years under appeal? To answer this question, the Board must consider the following sub-issues:

a. What is the reproduction cost new (“Cost New”) of improvements on the Subject Properties?

b. What depreciation should be applied to the Cost New of improvements on the Subject Properties?

c. What is the land value?

8The Board must also decide if an adjustment in the current value determined is required to ensure it is equitable when reference is made to the assessments of similar lands in the vicinity.

Result

9For the reasons that follow, the Board finds:

a. The correct current value of 18 Rink Street for the 2017 through 2021 taxation years is $63,431,000 with an apportionment of $7,768,000 in the Commercial property class and $55,663,000 in the Large Industrial property class.

b. The correct current value of 1045 Regional Rd 24 for the 2017 through 2021 taxation years is $3,483,000, with an apportionment of $283,000 in the Commercial property class and $3,200,000 in the Large Industrial property class.

c. The correct current value of 487 Power Street for the 2017 through 2021 taxation years is $6,451,000, in the Large Industrial property class.

d. The correct current value of 1700 Elm Street for the 2017 through 2021 taxation years is $16,965,000, with an apportionment of $523,500 in the Commercial property class and $16,441,500 in the Large Industrial property class.

e. The correct current value of the Garson Mine for the 2017 through 2021 taxation years is $1,862,000, with an apportionment of $142,500 in the Commercial property class, $1,719,500 in the Industrial property class.

f. The correct current value of 6 Edison Road for the 2017, 2018 and 2019 tax years is $22,406,000, with an apportionment of $2,773,200 in the Commercial property class and $19,632,800 in the Large Industrial property class.

g. The correct current value of 6 Edison Road for the 2020 and 2021 tax years is $23,001,000, with an apportionment of $2,789,700 in the Commercial property class and $20,211,300 in the Large Industrial property class.

10The Board also finds that no reductions to these current values are required for them represent equitable assessment when reference is made to the assessments of similar lands in the vicinity.

PRELIMINARY MATTERS

Recusal Motion

11On the first day of hearing, the City brought a motion that Member Stringer recuse herself from considering any requests to summon witnesses that the City may make throughout the proceeding. The City submitted there may be a reasonable apprehension of bias as Member Stringer had previously denied a request from the City to summon a witness to this hearing: see Greater Sudbury (City) v Municipal Property Assessment Corporation, Region 30, 2021 CanLII 102072 (ON ARB). The City was clear that it was not alleging that Member Stringer was biased on the underlying issues on appeal, and that it was not asking that Member Stringer recuse herself from the full hearing. The City’s request for recusal was focused solely on any potential requests to summon witnesses.

12The Respondents opposed the City’s request.

13The Board determined, and the City conceded, that the City may or may not request to summon a witness. Accordingly, the Board reserved its decision on the City’s recusal motion.

14The City did not request to summon a witness during the hearing. The City withdrew its recusal motion on the final day of hearing, and the Board was not required to rule on it.

ANALYSIS

Issue 1 – What is the correct current value for each Subject Property for the years under appeal?

Applicable Law

15In accordance with s. 44(3)(a) of the Assessment Act R.S.O. 1990, c. A.31 (“Act”), the Board must first determine “the current value of the land”. Section 1 of the Act defines current value as “the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer”.

16Accordingly, the Board must first determine what each Subject Property would have sold for in an arm’s length transaction on the statutory valuation day. Section 19.2(1) of the Act confirms that the valuation day for the taxation years under appeal is January 1, 2016.

Valuation Methodology

17The parties agree that the cost approach is the appropriate way to determine the current value the Subject Properties. Given the nature of the Subject Properties, and the fact that there are no sales of sufficiently comparable properties to directly compare to the Subject Properties, the Board agrees the cost approach is the appropriate valuation methodology.

18The cost approach requires a valuator to take several steps:

a. Determine the cost of reconstructing any structures, buildings, yardwork, and other improvements on the land (“Cost New”);

b. Identify and quantify all forms of depreciation, then apply a deduction for depreciation to the Cost New;

c. Determine the market value of the land;

d. Add the market value of the land to the depreciated Cost New.

a) What is the Cost New of improvements on the Subject Properties?

Evidence on Cost New of Improvements

19MPAC’s experts, Adam Azzopardi and Dani-Rae Anttonen, testified as to how they established the Cost New for the improvements on each Subject Property. They inspected each of the Subject Properties. They collected and reviewed relevant data relating to improvements on each of the Subject Properties. Then, they manually entered new data into, and reviewed existing data for, each Subject Property using MPAC’s Automated Costing System (“ACS”).

20MPAC’s experts explained that ACS is a cost estimator that values all costs associated with building and installing a particular component – including labour, material and equipment costs. These costs are normalized to remove project-specific oddities. They explained that unit costs in ACS are primarily developed using data provided by Hanscomb Limited, which is a group of quantity surveyors who research construction costs in Canada. MPAC’s experts explained that a specific cost database is prepared for the Northern Region – in which Sudbury is located – for every valuation day, to ensure that local costs are reflected at the appropriate point in time. Ms. Anttonen also provided an example of how the costing of an improvement is performed using ACS.

21Vale’s expert, Paul Davis, confirmed that he reviewed MPAC’s ACS costing and has no issues with the values calculated through ACS.

22Glencore’s expert, Robert Pelletier, provided extensive evidence regarding what is involved in an ACS costing, and the various inputs that inform it. He testified that he inspected the Glencore property at 6 Edison Road on five occasions, starting in 2009 with the last inspection on May 15, 2019. He reviewed all of the field records and ACS records in relation to 6 Edison Road for the 2008 and 2012 current value assessments to confirm the accuracy of inputs. Mr. Pelletier confirmed that there has been very little change to the components for the 2016 current value assessment compared to 2008 and 2012, although there were some changes to the rates of the components.

23Mr. Pelletier confirmed that he reviews the ACS rates for components and if he thinks the rates are incorrect, he investigates further by conducting internet research, as well as contacting suppliers and contractors. Mr. Pelletier confirmed he did not need to investigate component rates any further for the ACS costing of 6 Edison Road because, in his opinion, the ACS component rates were reasonable.

24All parties – including the Appellant’s expert, Don Davies – agreed that the MPAC experts properly identified and quantified the components of the improvements in ACS for the Subject Properties.

25Although in agreement regarding the identification and quantification of the components in ACS, Mr. Davies opined that the Costs New of all improvements do not reflect the actual costs, and ACS data is not in-line with actual construction costs in Sudbury.

26Mr. Davies testified that to arrive at this opinion, he analyzed five building permit applications that were submitted to the City by Vale for construction projects between 2009 and 2014. Four of these buildings were constructed at 18 Rink. The fifth permit related to a building constructed at the “Totten Mine”; a property owned by Vale but not otherwise involved in the Subject Appeals. Mr. Davies compared the value of each building, as declared on the permit, to the Costs New amounts for that building generated by ACS.

27Mr. Davies determined that the declared building permit values were, on average, 2.1 times higher than the Costs New generated by ACS. Accordingly, he concluded that ACS does not reflect local cost data.

28In addition to analyzing building permits, Mr. Davies considered information he received from Vale relating to costs of four of the five building permit projects. For comparison purposes, the Board has summarized the declared building permit amounts, MPAC’s Cost New, and cost information received from Vale as follows:

Project Description

Building Permit Amount (Without HST)

MPAC Cost New

Information from Vale

Bright Span Coverall

$100,800

$16,791

Built “at a contract price of $57,900”

Wet Berm Coverall

$737,280

$358,777

Vale paid a contractor “a total of $148,875”

AER Warehouse

$3,449,288

$1,213,701

The “amount capitalized” by Vale was $3,730,923.86;

Smelter Admin Office Complex

$7,818,540

$3,846,295

The “amount capitalized” by Vale was $9,129,539.25

Office/Mine Dry – Totten Mine

$8,795,000

$4,674,372

No information available.

29Finally, Mr. Davies performed an Assessment to Sale Ratio (“ASR”) analysis. He testified that he believes this ASR study is an indication that ACS does not accurately reflect construction costs in Sudbury. Mr. Davies collected data on 31 sales of industrial properties in Sudbury between January 1, 2013 and December 31, 2018. He time-adjusted these sale values to January 1, 2016. He then compared these time adjusted sale values to the actual 2016 current value assessments of the 31 industrial properties and developed an ASR for each property.

30Mr. Davies’ analysis produced a median ASR of 0.696. He noted 0.696 is a considerably lower ASR than the standards set by MPAC at 0.95 to 1.05, and the 0.90 to 1.10 range established by the International Association of Assessing Officers (‘IAAO’). Mr. Davies opined that this ASR study demonstrates that MPAC’s cost values are not reflecting market values.

31Mr. Davies testified that an increase to the Cost New of improvements by a factor of 1.6 would bring the current value assessments for the industrial properties in his ASR study up to acceptable market values, represented by an ASR of 0.965. He concluded that the ACS Cost New should therefore be increased by a factor of 1.6 across all improvements on the Subject Properties.

Submissions on Cost New of Improvements

32The Appellant submits that ACS component values in MPAC’s analysis are not accurate for the Greater Sudbury area because:

a. In an MPAC document entitled “Information Session: How Preliminary Replacement Cost New Per Square Foot Rates Were Derived: 2016 Base Year” dated January 2016, the preliminary costs new value reflected a rate per square foot of $137.50. The rate per square foot returned by MPAC is significantly lower, without explanation.

b. Mr. Davies’ building permit analysis, and the costs provided by Vale, show that actual construction costs are 2.1 times higher than those returned by ACS.

c. Mr. Davies’ ASR study shows that ACS undervalues large industrial properties in Greater Sudbury by a factor of 1.6.

33The City further submits that the Board can rely on Mr. Davies’ evidence to determine Cost New. The City submits that the correct Cost New should be determined by taking the Cost New generated in ACS and multiplying it by a factor of 1.6.

34MPAC, Glencore, and Vale submit that the Board should rely on MPAC’s ACS costing. They submit the ACS costing is supported by Mr. Davis and Mr. Pelletier. They submit that the $137.50 per square foot referenced in “Information Session: How Preliminary Replacement Cost New Per Square Foot Rates Were Derived: 2016 Base Year” was only a preliminary number derived from hypotheticals and cannot be relied on to contest the detailed ACS costing. They submit that Mr. Davies’ building permit values do not provide a reasonable basis for a blanket adjustment to the values of all of the structures and other improvements on the Subject Properties. They submit that the Board should not rely on the City’s ASR study.

Findings on Cost New of Improvements

35The Board finds that MPAC’s experts provided a detailed and transparent costing of each component of every structure on the Subject Properties. All parties accepted the quantity and type of the components included in this costing. The Board finds that MPAC sufficiently explained that the component rates in ACS were derived from data obtained from Hanscomb Limited based on costs within the Canadian construction industry and narrowed to Northern Ontario. MPAC’s ACS component rates were supported by Mr. Pelletier’s evidence. MPAC’s experts provided sound and reliable evidence.

36The City relies on its evidence for two things: first, to impugn MPAC’s ACS values; and second, to calculate Cost New. The Board addresses each in turn.

Does the City’s evidence impugn MPAC’s ACS values?

37First, the City points to the preliminary costs new value of $137.50 in “Information Session: How Preliminary Replacement Cost New Per Square Foot Rates Were Derived: 2016 Base Year” as a basis to challenge the ACS costing. The Board does not accept that this preliminary Costs New value impugns the comprehensive ACS costing performed by MPAC’s experts. The document is labelled with a “DRAFT” watermark. MPAC provided evidence that this document was a preliminary draft generated for stakeholder consultations. The document explicitly states that the cost new values are “hypothetical”, derived by costing hypothetical buildings and not reflective of any individual buildings.

38Second, the City points to the building permit analysis and costs information provided by Vale to show that actual construction costs are 2.1 times higher than those returned by ACS. The Board does not accept that this evidence is a reliable indicator of actual construction costs, or that this evidence reflects a problem with the ACS costing, for the following reasons:

a. Building permits relied on by Mr. Davies show the total declared costs of only five buildings on Vale properties. The permits do not provide a sufficiently itemized breakdown of costs on those five buildings, nor were there building permits for construction on the Glencore property. All of the experts agreed that these five buildings are dissimilar to the majority of heavy industrial buildings and yardwork on the Subject Properties.

b. The cost information provided by Vale was limited to four buildings. Vale did not provide information on “actual costs,” but rather referenced the total “contract price” for one building; the total amount paid to a contractor for the second building; and the total “amount capitalized” for two other buildings. While some “direct costs” for the AER Warehouse were identified, overall the information was not as detailed as the line-by-line ACS costing. The information provided by Vale did not confirm the building permit values. For example, the building permit value for the Bright Span Coverall is $100,800 compared to a $57,900 contract price disclosed by Vale. This is a difference of $42,900. For the Wet Berm Coverall, the declared building permit value is $737,280 while the amount Vale paid to its contractor was $148,875 – a difference of $588,405. For the Smelter Office building, the declared permit value of $7,818,540 is over $1.3 million less than the $9,129,539 “capitalized” by Vale. While the AER Warehouse declared permit value of $3,449,288 is closer to Vale’s “amount capitalized” of $3,730,923 than it is to MPAC’s ACS costing of $1,213,701, that is not enough for the Board to accept the City’s submission that the information provided by Vale confirms all of the building permit costs.

c. While the differences between the ACS values, the building permit values and the Vale information may raise questions regarding which value best reflects actual costs, it is not possible for the Board to compare the total costs in the building permits with the detailed, normalized costing in ACS to determine the source of any difference between them. The lack of detailed information means that the differences in these five properties could relate to project-specific oddities, or to differences in the components costed, or to site-specific costs. There was insufficient evidence for the Board to be confident that the amounts in the building permits and provided by Vale are normalized figures.

d. In contrast, the evidence was clear that ACS rates are normalized to eliminate such oddities. Ms. Anttonen, who had personally inspected the buildings, confirmed in reference to the AER Warehouse building that the declared value on the building permit seemed very high if it was meant to represent actual costs of construction. She confirmed this is likely due to site- or project-specific costs that are not included in Cost New calculations.

39The Board finds that the building permits and cost information provided by Vale are not sufficient to contest the detailed and transparent ACS costing.

40Third, the City submits that its ASR study shows that ACS undervalues large industrial properties in Greater Sudbury by a factor of 1.6. The Board does not accept this view. At best, if the ASR study is accurate, the analysis identifies a potential problem with the assessment as a whole. The ASR study does not break down where the difference between assessment values and sale amounts occurs. It does not parse out whether it is land or improvements that cause the differential. Therefore, the Board finds the ASR study is not determinative of any inaccuracies in ACS.

41A final note regarding MPAC’s onus to prove current value. The Appellant suggests that MPAC has failed to meet its burden because there is no evidence supporting the accuracy of ACS component values. The Appellant regularly characterized ACS as a “black box” and pointed to MPAC’s failure to produce reports and witnesses to verify ACS’ accuracy.

42The Board does not accept these submissions, nor does the Board agree with the City’s assertion that it should draw an adverse inference against MPAC for the following reasons:

a. There is other evidence supporting the accuracy of ACS component rates. Mr. Pelletier confirmed the reasonableness of ACS’ component values in relation to 6 Edison Road.

b. Both Ms. Anttonen and Mr. Pelletier provided comprehensive evidence regarding how ACS works. MPAC’s experts did not “simply point to ACS as sacrosanct and unquestionable”, as suggested in the City’s Reply Submissions. One has only to look at the ACS costing to see what rates are used for each component. MPAC explained that these component rates are derived from data gathered by quantity surveyors at Hanscomb Limited based on analysis of Canadian construction costs. MPAC explained the component rates are localized to the Northern Ontario region. This is far from a “black box.” This is a straightforward cost estimator, which is a well-recognized method of valuing improvements.

c. The City did not provide convincing evidence of a problem with the ACS component rates. The Board is not aware of any previous decision of this Board that would, absent a convincing challenge to the component rates, require any party to produce all of the data that informed the individual component rates in a cost estimator, whether the costs are derived by ACS, or Marshall and Swift, or R.S. Means, or any other similar cost manual used for valuation purposes. The Board does not accept such a standard is required in order for MPAC to meet its burden in all cases, and certainly not in this case where the City has failed to provide convincing evidence contesting ACS rates.

d. The Board has held in previous decisions that assessors must have “at least a basic understanding of [the ACS model] and be able to explain the values returned”: 2049098 Ontario Inc v Municipal Property Assessment Corporation, Region 15, 2016 CanLII 48797 (ON ARB) at paragraph 17. MPAC’s experts exceeded this standard and the Board is satisfied that MPAC has met its burden with respect to ACS Costs New.

Does the City’s evidence assist the Board in determining Cost New of improvements?

43The Board finds the City’s evidence is not reliable evidence in support of Cost New of Improvements, for the following reasons:

a. The City’s own expert, Mr. Davies, stated that “the purpose of the review of building permit information was to show that the ACS system employed by MPAC does not come close to producing actual costs – not to suggest that this is the approach that should be used to value all the buildings at the Subject Property.” Therefore, the City’s own evidence confirms that the building permit analysis should not be used to value improvements. Mr. Davies’ evidence cannot be reconciled with the City’s submission that building permit data is market evidence of actual costs that should be relied on by the Board in determining Cost New of improvements on the Subject Properties.

b. Mr. Davies ultimately suggested that the Board apply the 1.6 adjustment factor derived from his ASR study to the Cost New for all improvements on all Subject Properties. The Board has many concerns with Mr. Davies’ proposed approach. To highlight an obvious one the Board referenced at paragraph 40 herein: an ASR study looks at the overall difference between assessment values and sale amounts. It does not break down where that difference occurs within the valuation and does not tell us that Cost New is too low. Nevertheless, Mr. Davies’ approach would attribute 100% of the difference to Cost New. If the Board were to apply the ASR factor of 1.6 to the Cost New as suggested by the City, the Board risks using an incorrect Cost New to determine current value. For this reason the Board cannot rely on the City’s 1.6 factor to determine the Cost New of improvements on the Subject Property.

44The Board finds that the evidence provided by MPAC’s experts is the best evidence of Cost New of improvements on the Subject Properties and finds the Costs New advanced by MPAC’s experts are correct.

b) What depreciation should be applied to the Cost New of improvements on the Subject Properties?

Valuation Methodology

45The Appraisal of Real Estate indicates that there are three major causes of depreciation: physical deterioration, functional obsolescence (which includes excess capital costs and excess operating costs) and external obsolescence: The Appraisal of Real Estate, Chapter 17 The Cost Approach, p. 17.15.

46As part of the cost approach, once an assessor has determined the Cost New of improvements, they apply all of the above forms of depreciation.

Evidence on Depreciation

47After establishing the Cost New of improvements on the Subject Properties, the MPAC experts performed a depreciation/obsolescence analysis. They testified that in determining obsolescence, all forms of depreciation must be considered. They reviewed each improvement on-site to confirm the amount of obsolescence applied and to confirm that no double counting of any forms of depreciation had occurred. They applied adjustments for excess capital costs, physical depreciation, excess operating costs, and external obsolescence. They confirmed that the Subject Properties have appropriate reductions for all forms of depreciation.

48Mr. Davis, Vale’s expert, provided evidence confirming that the application of all forms of depreciation is simply a mathematical formula applied against the Cost New value: “if the percentages are accepted, then the valuator must complete the formula to arrive at a net value.” Mr. Davis confirmed that MPAC applied this formula to all structures. Mr. Davis confirmed that there is no appraisal theory that states a structure should not have a nominal valuation even though it is still in use, and there is no depreciation cap because an in-use building can easily only have nominal value to both a buyer and seller.

49Mr. Pelletier confirmed his opinion that MPAC correctly applied the proper methodology to depreciation.

50The Appellant’s expert, Mr. Davies, generally agreed with MPAC’s depreciation conclusions “to a point.” He opined that there should be limits to depreciation applied by MPAC. He provided evidence that an asset that has utility and functionality, such as those improvements to the Subject Properties that are in use, should have more than nominal value. He provided evidence that “there is no way to justify a 96% loss in value for [the] improvements.” Mr. Davies testified that the total global depreciation should not be greater than 80% on functioning components, citing precedents including the “old 69 Manual during the 1980s” and MPAC’s Memorandum of Understating with a ‘big box’ retailer relating to 2016 current value assessments.

Submissions on Depreciation

51The City submits that MPAC “blindly” applies depreciation deductions without considering the ongoing utility and value of various components in use at the Subject Properties, or the reasonableness of the results. The City maintains that depreciation deductions ought to produce a market value that reflects the utility of the improvements, and care should be taken to avoid double counting. The City maintains that MPAC’s experts failed to exercise their judgment and double-counted depreciation by using Age-Life tables that rely on sales data and therefore already incorporate all typical forms of depreciation. The City maintains that many if not most improvements at the Subject Properties are in use and productive, and therefore total depreciation should not exceed 80%.

52MPAC submits, and Vale and Glencore agree, that there is no basis in valuation methodology to apply a blanket cap of 80% to the global depreciation on all improvements still in use. They submit that an 80% depreciation cap is subjective and unsupported. They submit that MPAC’s experts, supported by Vale’s expert Mr. Davis and Glencore’s expert Mr. Pelletier, provided the Board with the best evidence on depreciation.

Findings on Depreciation

53The Board does not accept the 80% cap on depreciation suggested by the City, because:

a. The City’s expert did not identify which elements of MPAC’s depreciation analyses were too high or double-counted. Rather, he generally accepted MPAC’s individual adjustments for depreciation, then rejected the results of those individual adjustments and applied an 80% cap to any improvement with depreciation beyond 80%.

b. The City’s expert did not provide support for his approach from any recognized appraisal text. Instead, he pointed to two precedents: an out-of-date 1969 valuation guide, and an MOU between MPAC and a big box retailer. The Board finds these two sources are insufficient support for the appropriateness of an 80% global cap on depreciation.

c. Mr. Davies himself recognized his cap is “subjective.” Both Vale’s expert, Mr. Davis, and MPAC’s expert, Ms. Anttonen, provided evidence that Mr. Davies’ 80% global cap on depreciation is arbitrary and not supported by a recognized appraisal authority. In contrast to Mr. Davies’ view that components in use should have more than a nominal value, Mr. Davis confirmed that there is no appraisal theory that states a structure should not have a nominal valuation even though it is in use.

54Overall, the City did not provide sufficiently compelling evidence for the Board to accept that there should be an 80% cap on global depreciation. The Board finds that the City’s proposed 80% global cap on depreciation for all functioning components is an arbitrary and unsupported opinion and does not put any weight on the City’s expert evidence on depreciation.

55The Board finds that MPAC’s evidence on depreciation is detailed and supported by appraisal methodology, and accepts MPAC’s evidence on depreciation for the following reasons:

a. MPAC’s assessors reviewed each building, structure and element of yardwork on-site to determine the appropriate reduction using the breakdown method of considering each element of depreciation individually. Ms. Anttonen provided explicit evidence that she would input the depreciation factors based on her observations and analysis and determining what areas need to be addressed. While some elements, like excess operating costs and external obsolescence, were “pulled from a range of information in the background” in ACS, Ms. Anttonen clearly explained how the figures are derived. The external obsolescence factor of 35%, for instance, is related to factors outside of the Subject Properties and is applied uniformly across all mines in Ontario. Contrary to the assertions of the City that Ms. Anttonen “double-counted” depreciation because she relied on Age-Life Tables that are derived from actual sales data (and sold properties have already experienced a certain amount of depreciation from all sources), Ms. Anttonen confirmed that Age-Life Tables are not derived from actual sales and instead reflect “wear and tear.” There is no evidence of double-counting here. Moreover, Ms. Anttonen confirmed that, using the breakdown method described above, she considered every depreciation factor as a check on the reasonableness of these reductions.

b. Mr. Davies himself confirmed the accuracy of Ms. Anttonen’s individual depreciation amounts. Where the parties diverge is that Ms. Anttonen explicitly disagreed with Mr. Davies’ view that a global cap in depreciation is appropriate. Overall, this is not an instance of MPAC’s expert failing to apply her judgment to reduce depreciation, as suggested by the City; Ms. Anttonen just didn’t agree with how the City suggests she should have exercised her judgment.

c. It best reflects the approach outlined in recognized appraisal texts.

56For these reasons, the Board accepts MPAC’s experts’ evidence as the best evidence on depreciation. The Board finds the depreciation amounts to be applied to Costs New is in accordance with the depreciation amounts advanced by MPAC’s experts.

c) What is the land value?

Evidence on Land Value

57Every expert witness at this hearing acknowledged the challenges of valuing mining land. There is very limited data, given that mining lands do not frequently transact in the market.

58Due to the lack of sales of mining properties, MPAC’s experts analyzed vacant industrial land sales within the City of Sudbury. Due to the scarcity of sales, they used an expanded timeframe - January 1, 2012 to June 30, 2019 - to increase the sample size. They reviewed MPAC data to confirm that the sales appeared to be valid arm’s-length transactions. They reviewed aerial imagery to select sites that appeared clear, level, and ready or near-ready to build on.

59Their analysis produced 12 sales. At the hearing, MPAC’s experts agreed that one sale should be removed from their list, leaving 11 sales in the analysis.

60MPAC’s experts then applied time, size and locational adjustments to account for these differences across the 11 sales. The size and locational adjustment were applied to the time-adjusted sale rate per acre to determine what the rate per acre of each of the comparable properties would have been as of the valuation date. MPAC’s experts then used the median rate per acre and applied it to the acreages of the Subject Properties to determine the land value for each.

61MPAC’s opinion of land value for each of the Subject Properties was reviewed and deemed reasonable by both Vale expert Mr. Davis and Glencore expert Mr. Pelletier, given there were no larger acreage and/or mining land sales. Mr. Davis personally visited the properties in MPAC’s analysis, analyzed aerial and historical photographs of the sites, and spoke with purchasers. He confirmed the properties in MPAC’s land value analysis were clear, level and build-ready. He also confirmed that the land values proposed by MPAC were reasonable, particularly given that the grading requirements for the Subject Properties would be less than what most industrial sites would require.

62The Appellant’s land value expert, David Amborski, testified that MPAC’s approach fails to take into account costs of site preparation that are required in the Greater Sudbury area, including grubbing, blasting, levelling and internal servicing. Mr. Amborski provided evidence that the valuator must first establish the base land rate for the entire property, then determine how much of the Subject Property has been developed, then apply a factor for costs of site preparation to the developed area.

63Using this approach, Mr. Amborski accepted and relied on the land rates derived by MPAC’s experts. He used MPAC’s land rates – rates that included MPAC’s time, size and location adjustments - as a “base” value. Then, he used GIS software to calculate how much area on each of the Subject Properties had been developed with improvements. He applied MPAC’s land rate to undeveloped portions of the Subject Properties and applied a site preparation factor to MPAC’s land rate for the developed portions of the Subject Properties.

64Mr. Amborski derived his site preparation factor by analyzing tenders received by the City in relation to construction of the Kingsway Entertainment District, a mixed-use sports and entertainment district being developed in Greater Sudbury. Mr. Amborski reviewed the tenders, took the lowest bid, and determined a development cost per acre based on the pricing in that bid. He then time-adjusted that figure to 2016, to arrive at a rate per acre $87,780. Mr. Amborski then applied this rate per acre to the developed areas of the Subject Properties and added the amounts for “undeveloped” and “developed” areas to arrive at his proposed land values for the Subject Properties.

65At the hearing, Mr. Amborski revised the site adjustment factor to be applied to 6 Edison Road in response to Mr. Pelletier’s evidence that Glencore’s property has much different topography than the Kingsway Entertainment District. Mr. Pelletier had confirmed that 6 Edison Road is relatively flat, and out of the 235 acres there might be the odd rock outcrop but nothing requiring any levelling or site preparation. In response, Mr. Amborski confirmed that his $87,730/acre site preparation factor was not required across the entire Glencore property given that it was more or less flat. Mr. Amborski deducted rock excavation from the Kingsway Entertainment District tender, which was 35% of the improvement cost, resulting in a $31,231/acre site preparation factor to be applied to 6 Edison Road.

66The Appellant also provided evidence from Joe Rossanese. Mr. Rossanese did not provide an opinion of land value. Rather, he provided evidence of 14 land sales in support of Mr. Amborski’s finding that site preparation work adds value in the range of $87,730 per acre. Mr. Rossanese stated that his analysis of land sales shows that land that has been developed and prepared to be built-on sell at a higher price per acre than undeveloped land left in its natural state. Mr. Rossanese specifically referenced his Sale #6, being a 10-acre parcel of grubbed, blasted, but not serviced land that sold for $125,000 per acre. He compared this to his Sales #11 and 12 which are natural, unprepared land on larger acreages, with an average sale price per acre of $38,748. From this analysis, Mr. Rossanese confirmed his opinion that the difference in sale price per acre of the prepared and unprepared land is roughly $86,300 per acre, which supports Mr. Amborski’s opinion that site preparation work adds value in the range of $87,730 per acre. Mr. Rossanese also relied on a second example in the Westhill Court development, where a rocky, un-serviced parcel was purchased in February 2013 for $30,093 per acre and sold in 2016, 2017 and 2018 for between $250,000 to $337,600 per acre after grubbing, blasting, levelling, servicing and severing the parcel had occurred.

Submissions on Land Value

67The City submits that MPAC’s approach to valuing the land is flawed, because it relies on one land rate for the entire property, adjusted for size. The City submits that MPAC does not differentiate between developed and undeveloped areas of the Subject Properties. The City submits that the Board should rely on its land value, which it says is supported by Mr. Amborski’s evidence and market evidence provided by Mr. Rossanese.

68The City also suggests that MPAC’s size adjustment should be disregarded. The City submits that sales do not indicate that larger parcels of land sell at lower rates per acre, and that MPAC’s land curve sales analysis is unreliable.

69MPAC submits, and Glencore and Vale agree, that no additional value for site improvements is required because the site preparation costs are included in the market value of the lands in their study. They submit that MPAC’s experts, as confirmed by Mr. Davis and Mr. Pelletier, chose lands that were build-ready.

Findings on Land Value

70There was clearly a lack of robust data on land value. All experts agreed that only limited sales information was available.

71In this context, the Board accepts MPAC’s evidence of land value. MPAC provided a detailed land sales analysis of 11 sales. MPAC’s evidence was supported by both Vale and Glencore experts. While MPAC’s comparable properties were substantially smaller than the Subject Properties, and none were involved in mine operations or were zoned M4, the Board accepts that those shortcomings in the data reflect a lack of appropriate sales during the appropriate timeframe, and that appropriate adjustments were made for time, location, and size. All experts agreed that the comparable sales were not perfect, but that is reflective of the fact that mining properties do not regularly transact.

72It is noteworthy that Mr. Amborski also accepted MPAC’s land values and relied on MPAC’s land values – including MPAC’s various adjustments for time, size and location – in his analysis. Mr. Amborski took no issue with MPAC’s land values other than assuming MPAC relied on sales of unprepared lands. That assumption was incorrect - the evidence is clear that MPAC relied on clear, level, “build ready” lands except one that was ultimately removed from its analysis. Vale’s expert, Mr. Davis, personally inspected the sites and confirmed that sites were serviced, site graded, and at a build-ready state. Therefore, one of the core assumptions underlying Mr. Amborski’s evidence is simply wrong. In this context, the Board rejects the premise of Mr. Amborski’s evidence that a site additive cost is required. The Board finds that MPAC’s comparable properties were build-ready and reflected the market value for such sites.

73Even if a site additive were required, the Board is not satisfied it should be derived using Mr. Amborski’s approach of analyzing tenders for the Kingsway Entertainment District and choosing the lowest one, for the following reasons:

a. A tender is an estimate and not necessarily reflective of final construction cost, or market value.

b. The Kingsway Entertainment District is not a sufficient “proxy” for mining properties like the Subject Properties. The Board finds that the hotel, casino, restaurants, events centre and festival square proposed for the Kingsway Entertainment District are not the same as the type of developments required for industrial mining sites, such that the site preparation would be comparable in nature and scope.

c. Mr. Amborski relied on only one data point; a cost derived from a single tender for a single project. The Board finds this is an insufficient basis, in the circumstances, to derive a site additive cost.

74Mr. Rossanese provided evidence solely to support Mr. Amborski’s $87,780 per acre site preparation factor. Ultimately, this does not assist the Board given that the Board does not accept Mr. Amborski’s opinion that a site preparation factor is required.

75The Board does not accept the City’s evidence of land value. It is based on the incorrect premise that MPAC sales were undeveloped lands. It used limited data of one tender of a completely unrelated and non-comparable property.

76The Board finds that MPAC has provided the best evidence of land value – not perfect evidence, but the best evidence in light of market limitations – and relies on it in making its determination of current value of the Subject Properties. The Board finds the land values are in accordance with land values advanced by MPAC’s experts.

Issue 2 - Should an adjustment in the current value be made to ensure it is equitable with the assessments of similar properties in the vicinity?

Applicable Law

77 Section 44(3)(b) of the Act directs that, after determining current value, the Board shall have reference to the value at which similar lands in the vicinity are assessed and “adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land”.

Evidence on Equitable Assessment

78No evidence was advanced specifically on the issue of equitable assessment, although MPAC’s experts did confirm that all mining properties in Ontario are valued the same way. In addition, Mr. Davis provided evidence that ACS reflects median market costs of materials, equipment and labour associated with building a structure which ultimately helps to achieve equitable assessment on overall property values. Mr. Davis added that MPAC has consistently valued other industrial and mining properties throughout Ontario using ACS and, in his opinion, to do otherwise would create inequitable valuations for this property type.

Submissions of the Parties

79Vale submits that if the City seeks a change in the assessment, it has to prove to the Board that the assessment is equitable. Vale submits that the City has not shown that, if the assessments of the Subject Properties are increased, those assessments would be equitable with the assessments of similar lands in the vicinity. Vale submits that the increase would be inequitable, as the Board would be treating the Subject Properties differently than all other mining properties in Ontario.

80Glencore submits that the only evidence before the Board on equity is that all mining properties are valued in the same way, so to change how the Subject Properties are assessed would result in the Subject Properties being assessed disproportionately high from all other mining properties in Ontario.

81The City submits that no equity analysis was presented to the Board, and there are no facts or evidence on which an equity analysis can be based.

82MPAC did not provide submissions on this issue.

Findings on Issue 2

83The Board has determined the correct current value of the Subject Properties. If the Board reduces those correct current values for the purposes of equitable assessment, the Board is effectively amending a correct value to one that is incorrect by definition. The Board must have convincing evidence on equitable assessment to reduce an otherwise correct current value.

84The Board was not provided with sufficient evidence to determine whether the current values are equitable with the assessments of similar lands in the vicinity. It was not provided with assessments of similar lands, and the parties all agreed that there were no sales of similar mining lands on which the Board could rely.

85In the absence of evidence demonstrating that reductions in the current value assessments are required to make them equitable with the assessments of similar lands in the vicinity, the Board finds that no equitable reduction is required.

CONCLUSION

86As stated by the City in its Reply Submissions, “[i]t is not a question of perfection – it is an issue of who presents the best evidence in this case before this Board.” The Board finds that the best evidence in this case was that adduced by MPAC. MPAC was able to demonstrate that its proposed current value is supportable and reasonable, that it is more likely that it is correct than not correct, using the cost approach valuation methodology.

87Given that the Board has accepted MPAC’s evidence as the best evidence relating to all components of the cost approach to valuing the Subject Properties, including Cost New, depreciation, and land value, the Board relies on the final determinations of current value provided by MPAC’s experts.

88The Board also finds that no reductions to the current values are required to make them equitable when reference is made to the assessments of similar lands in the vicinity.

ORDER

89The Board orders that the current value assessments and their respective apportionments are revised, in accordance with the Total Value Determined column in Schedule A, attached to this decision.

"Carly Stringer"

CARLY STRINGER

MEMBER

"Dan Weagant"

DAN WEAGANT

MEMBER

Assessment Review Board

Website: www.tribunalsontario.ca/arb

WR 176193

SCHEDULE A

Roll No.

Appeal No.

Taxation Year

Effective Date

Section

Total Value as Returned: Apportionment

Total Value Determined: Apportionment

1045 REGIONAL RD 24 CREIGHTON CON 1 CON 2 LOT 1

5307-120-016-03201-0000

3242171

2017

01/01/2017